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05.11.10

Elena Kagan's Surprise Defender

Richard Epstein, a libertarian and former colleague of Elena Kagan at the University of Chicago, on the weak case for keeping her off the court.

Richard Epstein, a libertarian and former colleague of Elena Kagan at the University of Chicago, on the weak case for keeping her off the court. Plus, read our full coverage of Elena Kagan

I was a colleague of Elena Kagan during her four years at the University of Chicago from 1991 to 1995. From that perch, I have been asked numerous times what I think of her nomination to the United States Supreme Court. It is not an easy question to answer. My first choice was Judge Diane Wood. I did what little I could to advance her candidacy, hoping that my endorsement did not dampen her chances with the Obama administration. That is water over the dam. Going forward, the question is what to make of the Kagan nomination.

The first part of that exercise asks the level of deference that should be given a president on Supreme Court nominations. As someone who is securely outside the mainstream on all major constitutional matters, I have only two choices. Either I oppose everyone on the ground that he or she is not a consistent judicial libertarian, or I learn to make peace with the brute fact that no one of my ilk will be appointed to the Supreme Court for a long time. In general, I prefer to take the second approach, and thus have usually gone along with presidential nominations even in the face of serious difference on constitutional outlook.

I suspect that [Kagan] will be a judge similar to Ruth Bader Ginsburg, to whom general speculation has never come easily. I expect that the decisions will be narrow and professionally crafted.

That is the attitude that I take toward Elena Kagan. I realize that writers like Curt Levey have teed off against her on the ground that she supported the ill-conceived attack on the Solomon Amendment whose innocuous provisions required universities to let on campus military recruiters in order to remain in good standing for federal grants.

Read Our Full Coverage of Elena KaganI agree with Levey and others that the First Amendment attack on the Solomon Amendment was silly beyond all belief, and that the unanimous Supreme Court was right to laugh it out of court. But I think that in general it is wrong to go after nominees for single actions, however misguided. As the dean of the Harvard Law School, there were a lot of pressures on Kagan to take just this stand against the ill-advised policy no matter what her beliefs. Yet, I don't know how she would view the same issue from the vantage of a sitting justice. In any event, it is bad policy to attack a nomination because of a strong objection on a single issue. So far, I don't think that the weak presumption in her favor is overcome.

So what else could be used to make the case against her? One argument that is often raised was that she did not receive a reappointment to the faculty at the University of Chicago in 1999, before going onto Harvard as a visiting professor, where through grit and hard work, she regained her footing and, with the strong backing of Larry Summers, become by all accounts a superb dean.

One question is what to make of this broken record. And the answer is not all that much, at least from the Chicago end. Diane Wood is in my view a great judge, but she was not a great scholar before going on the bench. Elena Kagan was not a great scholar at the University of Chicago in part because her ambitions so clearly lay elsewhere. Yet so what? There is no necessary correlation between the two professions. There are lots of great scholars who don't belong on the bench. One of the key elements of judging is, not surprisingly, judging. Judge Wood has demonstrated her ability to judge, and the most uneasy thing about the Kagan nomination, is that she has not had any opportunity to make her mark in that regard. She has of course served as solicitor general to, it seems, mixed reviews. But once again it is a lot to ask of anyone that she go from zero to 60 miles an hour in a matter of hours or days. It takes time to become an oral advocate just as it takes time to become an academic or a judge.

If, as I expect will be the case, she is confirmed, she will work flat out. Persistence has its real virtues, and I think that she will improve over time. Yet I doubt that she will become a capacious judge with wide-ranging interests and intense curiosity. Rather, I suspect that she will be a judge similar to Ruth Bader Ginsburg, to whom general speculation has never come easily. I expect that the decisions will be narrow and professionally crafted. What I cannot predict is where she will come out on the political spectrum; nor it seems can anyone else I ask. Her background here suggests that she will move left, but her temperament suggests that she will move to the center. Nothing about her time at Chicago gives a strong clue on that question.

So we end with the initial presumption. Some people are not thrilled with this nomination. But many, especially those who knew her at Harvard, are. So as presently advised, I would vote to confirm the nomination. The rebuttable presumption in her favor has not been rebutted to date.

Richard A. Epstein is the Peter and Kirsten Bedford Senior Fellow at Stanford's Hoover Institution, the James Parker Hall Distinguished Service Professor at the University of Chicago, and a visiting Professor at New York University Law School.